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Petalino v. Williams

Court of Appeals of Illinois, First District, Fifth Division

August 26, 2016

GILDA PETALINO, Petitioner-Appellee
LE DOMINIC WILLIAMS, Respondent-Appellant.

         Appeal from the Circuit Court of Cook County, No. 12-D-279004; the Hon. Jeanne M. Reynolds, Judge, presiding.

         Judgment Affirmed.

          Martin Spencer, of Chicago, for appellant.

          Charles A. Bird, of Dentons U.S. LLP, and Jennifer Payne, of Legal Assistance Foundation, both of Chicago, for appellee.

          PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion. Justices Lampkin and Burke concurred in the judgment and opinion.



         ¶ 1 Respondent Le Dominic Williams (Williams) appeals from a plenary order of protection issued by the circuit court of Cook County pursuant to the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (750 ILCS 60/101 et seq. (West 2014)) in favor of Gilda Petalino (Petalino). Williams argues that the circuit court abused its discretion when it denied his motion for substitution for judge. Williams also argues the circuit court erred in denying his motion for a continuance of the hearing to provide him the opportunity to subpoena his witnesses. For the reasons that follow, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 On January 26, 2012, Williams filed a complaint in the circuit court of Cook County to determine the existence of a parent-child relationship pursuant to the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West 2012)). Williams alleged he fathered a child (B.W.) with Petalino and requested the court enter the following orders: (1) declare him to be B.W.'s father, (2) require Petalino to pay child support, and (3) establish reasonable visitation. In her answer to the complaint, Petalino admitted Williams is B.W.'s biological father, requested Williams be ordered to pay child support, and admitted the court should establish reasonable visitation.

         ¶ 4 On June 25, 2013, after a hearing on all of the issues pertaining to the parentage of B.W., the circuit court entered an order finding Williams was B.W.'s father and granting Petalino sole custody of the child and provided "liberal and reasonable visitation" for Williams with specific provisions.

         ¶ 5 Petalino, on October 23, 2014, filed a petition for an order of protection based on Williams's alleged use of a belt on the child's buttocks as a form of punishment. Accompanying the petition was a form "Domestic Violence Cover Sheet, " which indicated that the parties had previously filed a parentage action between them that was assigned case No. 12 D 279004. Upon presentment of the petition, the circuit court, although finding that there was insufficient evidence of an emergency, did schedule the matter for a hearing. At Petalino's request, on December 19, 2014, the circuit court voluntarily dismissed the petition without prejudice.

         ¶ 6 Petalino, on December 19, 2014, filed a petition for an emergency order of protection alleging (1) on two occasions Williams beat B.W. with a belt on his buttocks and (2) the Department of Children and Family Services indicated a finding of child abuse or neglect against Williams regarding his treatment of B.W. The emergency petition was also accompanied by a "Domestic Violence Cover Sheet" that was identical to the one previously filed and, accordingly, the matter was set for a hearing. That same day, the circuit court granted an emergency order of protection for both Petalino and B.W. Williams was ultimately served with the petition by publication.

         ¶ 7 On March 6, 2015, Williams was present in court and was represented by counsel who had not yet filed an appearance. The circuit court granted Williams or his counsel 21 days to file an appearance and continued the matter for status to April 21, 2015.

         ¶ 8 Williams, on March 27, 2015, filed his pro se appearance and requested an additional 14 days to respond to the motion for the order of protection and retain counsel.

         ¶ 9 On April 20, 2015, Williams filed a pro se motion for substitution of judge. In his motion, Williams asserted that he "believes it would be in his best interest to have the matter transferred to be heard before a different Judge as [the same trial judge] handled and decided the custody issues, visitation, child support and mediation matters pertaining to [Williams's] minor child." Williams further asserted he "believes that the Order of Protection would much better be handled by another Judge as there would be no past matter familiarities on any issues other than the issues at hand for the present litigation." The motion did not indicate whether Williams was seeking a substitution of judge as of right or for cause. The following day, the circuit court denied the motion for substitution of judge, granted Williams an additional 10 days to answer the order of protection, and set the matter for hearing on May 12, 2015.

         ¶ 10 Thereafter, Williams timely filed a motion for reconsideration, which clarified that his request for substitution of judge was being made as of right. On May 12, 2015, the circuit court denied the motion on the basis that substantive rulings had already been rendered by the same trial judge. The circuit court further ordered that the hearing be continued to June 1, 2015, for Petalino to present the remainder of her case in chief and for Williams to present his case.

         ¶ 11 On May 31, 2015, Williams e-mailed Petalino's counsel indicating he would be filing an emergency motion to continue the hearing the next day. The emergency motion, which is devoid of a file stamp, appears in the supplemental record and indicates that the basis for Williams's request for a continuance was for an "opportunity to subpoena his witnesses" as they were unable to be present for the hearing.

         ¶ 12 On June 1, 2015, after concluding the hearing, the circuit court granted a two-year plenary order of protection for Petalino and B.W. The record on appeal contains no order or report of proceedings indicating the circuit court ruled on Williams's emergency motion for a continuance. This appeal followed.

         ¶ 13 ANALYSIS

         ¶ 14 Substitution of Judge as of Right

         ¶ 15 On appeal, Williams first argues the circuit court erred when it denied his motion for substitution of judge as of right. Williams maintains his motion was timely because (1) it was filed shortly after he filed his appearance and (2) the circuit court had not made any substantive ...

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